| Sanevich v Lyubomir |
| 2009 NY Slip Op 07243 [66 AD3d 665] |
| October 6, 2009 |
| Appellate Division, Second Department |
| Leonid Sanevich, Respondent, et al., Plaintiff, v YuriyLyubomir et al., Appellants. |
—[*1] Lozner & Mastropietro (Pollack, Pollack, Isaac & De Cicco, New York, N.Y. [Brian J. Isaacand Jillian Rosen], of counsel), for respondent.
In an action to recover damages for personal injuries, the defendants appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Kings County (Jacobson, J.), datedMarch 31, 2009, as denied that branch of their motion which was for summary judgmentdismissing the complaint insofar as asserted by the plaintiff Leonid Sanevich on the ground thathe did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is affirmed insofar as appealed from, with costs.
The defendants met their prima facie burden of showing that the plaintiff Leonid Sanevich(hereinafter the plaintiff) did not sustain a serious injury within the meaning of Insurance Law§ 5102 (d) as a result of the subject accident (see Toure v Avis Rent A Car Sys.,98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]; see also Giraldo v Mandanici, 24AD3d 419 [2005]; Meyers vBobower Yeshiva Bnei Zion, 20 AD3d 456 [2005]).
In opposition, Dr. Zina Turovsky, the plaintiff's treating physician, opined in an affirmation,based upon her contemporaneous and most recent examinations of the plaintiff and review of themagnetic resonance imaging report dated August 28, 2006 of the plaintiff's right shoulder andphysical therapy records, that the plaintiff's right shoulder injury and observed range-of-motionlimitations were significant and permanent, and causally related to the subject accident. Thus, theplaintiff raised a triable issue of fact as to whether he sustained a permanent consequentiallimitation of use and/or a significant limitation of use of his right shoulder as a result of thesubject accident (see Azor vTorado, 59 AD3d 367, 368 [2009]; Williams v Clark, 54 AD3d 942, 943 [2008]; Casey v Mas Transp., Inc., 48 AD3d610, 611 [2008]; Green v Nara Car& Limo, Inc., 42 AD3d 430, 431 [2007]; Francovig v Senekis Cab Corp., 41 AD3d 643, 644-645 [2007]).
The defendants' remaining contentions either are without merit or, based on ourdetermination, have been rendered academic. Skelos, J.P., Covello, Santucci, Chambers andAustin, JJ., concur.